Jointly written by Helen Bray & Annie Aktar
A recent High Court decision (R(Harris) v Environment Agency & Natural England ) has confirmed that European conservation laws remain enforceable despite Brexit.
The claimants sought to challenge by judicial review both the legality and rationality of a decision taken by the Environment Agency in relation to its management of water abstraction licences in the Norfolk Broads.
The EA has a duty to promote the conservation of flora and fauna that are dependent on an aquatic environment. It is also responsible for granting, revoking and varying licences for the abstraction of water; in the Broads, such licences are chiefly for agriculture. The Broads is one of the driest parts of the country, and the claimants – themselves farmers on the Broads – were concerned that water abstraction was causing irremediable damage to the environment, including to ecosystems that were legally protected under European Law.
Specifically, this case was brought against the EA’s decision to limit a programme undertaken to review the impact of water abstraction on the Broads to just three of the 28 individual SSSIs which together make up The Broads Special Area of Conservation (”SAC”). The claimants’ case also applied to the 25 SSSIs which make up the Broadlands Special Protection Area for birds and the Broadland Ramsar site, both of which are also protected under article 6 of the EU Habitats Directive (92/43/EEC) (“Habitats Directive”), but the Judge determined that it was sufficient to focus on the SAC to resolve the claim.
The disputed programme – known as the Restoring Sustainable Abstraction Programme – began in 1999, and was intended to identify, investigate and resolve environmental damage caused by unsustainable water abstraction. By 2012, approximately 500 sites had been identified across the country as being at risk, at which point the EA decided to close the programme to new sites to enable it to take action.
The key points in dispute included:
In summary, where an activity is known to pose a risk to the environment, article 6(2) imposes a requirement for proactive measures to be taken to prevent harm occurring.
The Judge (Johnson J) did not agree with the claimants’ argument that the obligation to ‘have regard’ to the Habitats Directive mandated compliance with article 6(2) of the Habitats Directive. The duty to have regard was differentiated from a duty to act in a specified way, for example. Johnson J agreed with the EA that by considering article 6(2) in its programme, it had satisfied the obligation to have regard to it.
The Habitats Regulations are retained EU law under the European Union (Withdrawal) Act 2018. In contrast, the Habitats Directive is not direct EU legislation, and so the obligations imposed under it only continue to be applicable in UK law if they were either recognised in domestic law or ‘of a kind’ recognised by the CJEU or any court or tribunal in the UK before 31 December 2020.
Article 6(2) has not been recognised by the courts as having direct effect in domestic law, but the claimants’ case was that the obligation it imposed was of a kind, which had been so recognised. Johnson J agreed: article 6(3) had been found to have direct effect in national courts by the European Court of Justice in 2005, and there is a close relationship between that article and article 6(2). Article 6(2) therefore continues to be recognised and is enforceable in domestic law post Brexit.
The EA’s programme was not intended to be a comprehensive analysis of the impact of abstraction across every SSSI within the Broads. However, the EA accepted that the environmental risks from abstraction were not limited to the three sites it focused on. Johnson J found that whilst further studies of the other sites had not been ruled out, that was not adequate to discharge the duty imposed by article 6(2) to take proactive remedial steps in light of the accepted knowledge that water abstraction posed a risk of damage to the environment across the whole of the SAC.
Johnson J did not accept the EA’s case that its lack of resources provided a justification for its failure to take any proactive activity in relation to the other SSSIs, stating:
“Resources may be relevant to the decision as to how to discharge the article 6(2)/regulation 9(3) obligations, but they are not relevant to the question of whether to discharge those obligations ”.
Johnson J found that the EA had acted irrationally by not expanding the programme: the EA had committed to comply with article 6(2), yet in limiting the programme as it did, compliance was impossible. A rational course of action to ensure compliance with article 6(2) would have been either to expand the programme or to undertake further work.
This case reaffirms the importance of the precautionary principle underlying environmental law; it is the starting point for the interpretation of legislation. More broadly though, whether provisions in EU directives are ‘of a kind’ that have been recognised in UK courts will depend on the specific provisions in question, when taken in context.